NATIONAL GEOGRAPHIC SOC. v. DC DOES

NATIONAL GEOGRAPHIC SOCIETY AND AMERICAN MOTORISTS INSURANCE COMPANY, PETITIONERS,V.DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, AND ISAAC BROWN, INTERVENOR.

Before Wagner, Chief Judge, and Terry and Schwelb, Associate
Judges.

The opinion of the court was delivered by: Wagner, Chief Judge:

Petitioners, National Geographic Society and American Motorists Insurance Company (collectively referred to as National), seek review of a decision of the District of Columbia Department of Employment Services (DOES), requiring National to pay the attorney's fees and costs of intervenor, Isaac Brown, in a workers' compensation case. National argues that DOES erred in interpreting § 36-330(b) of the District of Columbia Workers' Compensation Act as authorizing an award of attorney's fees and costs to a claimant where the employer has not refused to pay the claimant additional compensation upon recommendation of the Mayor or his agent. We conclude that § 36-330(b) does not authorize the payment of attorney's fees and costs where the employer and its carrier did not decline to pay additional compensation upon recommendation of the Mayor or his agent.

I.

On January 18, 1990, Brown fell and injured his knee while working as a custodian for the National Geographic Society. National paid him temporary total disability benefits related to his knee injury from January 19, 1990 until November 25, 1991. Benefits were terminated based upon the employer's contention that Brown was capable of returning to work. A medical report of Dr. Randall Lewis dated November 25, 1991 states that "[Brown] has no residual disability as a result of his knee injury and he can return to his former duties at work as of the date of this examination." Brown filed an application for a formal hearing. At the hearing on June 17, 1992, Brown claimed that he still had debilitating back and knee pain as a result of his earlier injury. The hearing examiner found that Brown's continuing physical problems were "medically and causally" related to the injury that occurred on January 18, 1990. The examiner also found that Brown was unable to return to work because of a thirty-five percent permanent partial disability in his left leg.

On August 30, 1994, the hearing examiner ordered National to pay Brown's attorney's fees pursuant to D.C.Code § 36-330(b). National appealed to the agency's director, contending that § 36-330(b) by its terms, is not triggered unless the employer declines to pay [721 A2d Page 620]

permanent disability benefits upon recommendation of the Mayor after an informal conference. The acting director of the agency rejected National's argument, concluding that "there is no statute, case law or evidence of local statutory intent which mandates that the claimant's attorney fees will only be paid by the employer if the claimant seeks to resolve the benefits dispute informally before a claims examiner prior to having a full evidentiary hearing." National petitioned for review of this decision.

II.

National argues here, as it did before the agency, that Brown is not entitled to an award of attorney's fees under D.C.Code § 36-330(b) because the preconditions for such fees were not met. Specifically, National contends that since the Mayor or his agent never recommended a disposition of the dispute as to additional compensation, it did not refuse to accept such written recommendation within fourteen days after receipt, and therefore cannot be held liable for attorney's fees under D.C.Code § 36-330(b). Brown argues that this court should give deference to the agency's reasonable interpretation of the statute it administers. See Lee v. District of Columbia Dep't of Employment Servs., 509 A.2d 100, 102 (D.C. 1986); Hively v. District of Columbia Dep't of Employment Servs., 681 A.2d 1158, 1160-61 (D.C. 1996). We must decide whether DOES correctly interpreted § 36-330(b) as authorizing an award of attorney's fees and costs to Brown under these circumstances.

a. Standard of Review

In interpreting a statute, this court must give weight to any reasonable construction of a regulatory statute that has been adopted by the agency charged with its enforcement." Lee, supra, 509 A.2d at 102. Unless the agency's interpretation is plainly wrong or inconsistent with the statute, we will sustain it even if there are other constructions which may be equally reasonable. Id.; Hively, supra, 681 A.2d at 1160-61. However, the natural corollary of the agency deference proposition is that " 'we are not obliged to stand aside and affirm an administrative determination which reflects a misconception of the relevant law or a faulty application of the law.' " Zenian v. Office of Employee Appeals, 598 A.2d 1161, 1166 (D.C. 1991) (citing Thomas v. District of Columbia Dep't of Labor, 409 A.2d 164, 169 (D.C. 1979)).

In interpreting a statute, we first look to its language; "if the words are clear and unambiguous, we must give effect to its plain meaning." James Parreco & Son v. District of Columbia Rental Hous. Comm'n, 567 A.2d 43, 45 (D.C. 1989) (citing Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc)) (further citation omitted). The intent of the legislature is to be found in the language used. Id. at 46 (citing United States v. Goldenberg, 168 U.S. 95, 102-03, 18 S.Ct. 3, 42 L.Ed. 394 (1897)). The burden on a litigant who seeks to disregard the plain meaning of the statute is a heavy one, and "[t]his court will look beyond the ordinary meaning of the words of a statute only where there are persuasive reasons for doing so." James Parreco & Son, 567 A.2d at 46 (internal quotations omitted). With these principles of statutory construction in mind, we examine the applicable statute in this case.

b. Analysis

D.C.Code § 36-330 provides for attorney fees under the Workers' Compensation Act. *fn1 Subsection (b) of § 36-330, which is at issue in this case, provides: [721 A2d Page 621]

If the employer or carrier pays or tenders payment of compensation without an award pursuant to this chapter, and thereafter a controversy develops over the amount of additional compensation, if any, to which the employee may be entitled, the Mayor shall recommend in writing a disposition of the controversy. If the employer or carrier refuse to accept such written recommendation, within 14 days after its receipt by them, they shall pay or tender to the employee in writing the additional compensation, if any, to which they believe the employee is entitled. If the employee refuses to accept such payment or tender of compensation and thereafter utilizes the services of an attorney-at-law, and if the compensation thereafter awarded is greater than the amount paid or tendered by the employer or carrier, a reasonable attorney's fee based solely upon the difference between the amount awarded and the amount tendered or paid shall be awarded in addition to the amount of compensation. The foregoing sentence shall not apply if the controversy relates to degree or length of disability, and if the employer or carrier offers to submit the case for evaluation by physicians employed or selected by the Mayor, as authorized in § 36-307(e), and offers to tender an amount of compensation based upon the degree or length of disability found by the independent medical report at such time as an evaluation of disability found by the independent medical report at such time as an evaluation of disability can be ...

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